Gay-rights advocates may rue day

Friday

Jul 16, 2010 at 12:13 PM

WASHINGTON - Supporters of gay rights were naturally thrilled when a judge in Boston ruled recently that same-sex couples - who have been marrying each other in Massachusetts since 2003 - are entitled to the same federal benefits as other legally wed partners.

"I am so happy I can't even put it into words," said Nancy Gill, the postal worker who brought the case. "I just think how life-changing this can be," added her spouse, Marcelle Letourneau, who can now qualify under Gill's health care plan (assuming the decision is upheld on appeal). "I mean, it gives us peace of mind."

As supporters of gay marriage, we're happy for them and other same-sex couples that could file joint tax returns or inherit each other's property. But liberals might want to temper their celebrations. District Court Judge Joseph L. Tauro wrote an opinion that could fall smack into that annoying old category: "Be careful what you wish for."

At issue is the Defense of Marriage Act (DOMA), passed in 1996 and signed by President Clinton, which limits marriage to a man and a woman. Judge Tauro ruled that the law violates the 10th Amendment, a provision beloved by conservatives because it stresses states' rights over federal power.

In using a conservative doctrine to achieve a liberal result, the judge confused just about everyone. Tea Party activists liked his legal reasoning, but as one defensively told the New York Times, "I don't want to come off saying I support gay marriage." Liberals are pleased with the outcome but should be concerned about how the judge reached his conclusion.

Federal power has long been used in this country to promote social reforms and defend individual rights. Just recently, for example, the Justice Department filed suit against Arizona's new immigration law, saying it could lead to racial profiling.

Judge Tauro's affection for states' rights, if adopted by other jurists, could do grave damage to progressive interests. Take the healthcare bill enacted last March. Several states are already trying to stop it in the courts, on the grounds that its federal mandates violate the same 10th Amendment principle employed by Judge Tauro.

"Judge Tauro has offered a road map to attack a wide range of federal welfare programs, including healthcare reform," warned Yale Law School professor Jack Balkin, a gay-rights advocate. "No matter how much they might like the result in this particular case, this is not a road that liberals want to travel."

The judge actually ruled in two different cases. In the second, he said that DOMA also violated the constitutional guarantee of "equal protection" under the law. Here, too, Balkin suggested, liberals should be wary. As he wrote: "Whether one likes it or not - and I do not - Judge Tauro is way ahead of the national consensus on the equal-protection issue."

That "national consensus" is clearly shifting. When DOMA was passed 14 years ago, only 27 percent of Americans favored gay marriage. Today, that figure has moved up to 39 percent, and among voters under 30, three out of five support it. But still, outside of liberal bastions like Massachusetts, the idea does not yet command popular support. Thirty states have voted on gay marriage in recent years, and every one has defeated it (six jurisdictions have gay marriage resulting from court rulings and legislative action). Even in California, voters overturned a gay-marriage bill enacted by the legislature.

Here's the rub. If Massachusetts can use the 10th Amendment to expand gay rights, Georgia or Idaho can use the same provision to restrict those rights. And history teaches that a "states' rights" doctrine has often been invoked to limit individual liberty, not expand it.

It took the Supreme Court and Congress to overturn local Jim Crow laws, and Presidents Eisenhower and Kennedy to enforce those changes. Gov. George Wallace did not stand "in the schoolhouse door" to welcome black students to the University of Alabama in 1963. Only federal power made him step aside. Only the Supreme Court could overturn state statutes that once banned interracial marriage and gay-sex practices.

The trend favors gay marriage. A generation from now, Americans could well look back at Nancy Gill and Marcelle Letourneau and wonder what all the fuss was about. But Balkin is right - a "national consensus" has not yet formed behind this idea.

Judge Tauro might be a brave man, but his opinion could be used against the same progressive forces that now cheer him as a hero.

Steve and Cokie Roberts can be contacted by e-mail at mailto:stevecokie@gmail.com">stevecokie@gmail.com. Their column is distributed by United Media/Newspaper Enterprise Association.

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